Eakerns v. Kingman Regional Medical Center, No. 2:2006cv03009 - Document 94 (D. Ariz. 2009)

Court Description: MEMORANDUM OF DECISION AND ORDER that Dft KRMC's 77 Motion for Summary Judgment is GRANTED IN PART as to Pla Eakern's intentional infliction of emotional distress claim and DENIED IN PART as to the rest of Pla's claims. FURTHER ORDER ED setting a final pretrial conference before the Honorable Stephen M. McNamee for 06/01/09 at 3:00 p.m. in Courtroom 605 at 401 W. Washington Street in Phoenix, Arizona. The parties shall keep the Court apprised of the possibility of settlement and should settlement be reached, the parties shall file a Notice of Settlement with the Clerk of the Court. Signed by Judge Stephen M McNamee on 03/18/09. (ESL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeanette Rose Eakerns, 10 Plaintiff, 11 v. 12 Kingman Regional Medical Center, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 06-3009-PHX-SMM MEMORANDUM OF DECISION AND ORDER 15 16 Before the Court is Defendant Kingman Regional Medical Center s ( KRMC ) 17 Motion for Summary Judgment (Dkt. 77). Having considered the parties memoranda and 18 other submissions, the Court now issues this Memorandum of Decision and Order granting 19 in part Defendant s motion as to Plaintiff s intentional infliction of emotional distress claim 20 and denying in part as to the rest of Plaintiff s claims.1 21 /// 22 /// 23 /// 24 /// 25 26 27 28 1 Plaintiff requested oral argument in its Response to the Motion for Summary Judgment (Dkt. 90). The parties have had the opportunity to submit evidence and briefing. Accordingly, the Court finds the pending motion for summary judgment suitable for decision without oral argument and Plaintiff s request is denied. See LRCiv 7.2(f), 56.2. 1 FACTUAL BACKGROUND 2 Plaintiff Jeanette Rose Eakerns ( Plaintiff ) is an American Indian2 and a member of 3 the Hualapai Tribe (Dkt. 89, Pl. s Statement of Facts ( PSOF ) ¶ 1). Plaintiff has lived on 4 the Hualapai Reservation with her parents, and she has relatives who still live on the 5 Reservation. (Id.). To this day, Plaintiff observes the customs, practices, and religious rites 6 of the Hualapai Tribe (Id.). 7 In August 1984, Plaintiff began working for KRMC as a nursing assistant (Dkt. 89, 8 Pl. s Responsive Statement of Facts ( PRSOF ) ¶ 1). During the next 20 years, KRMC 9 promoted Plaintiff throughout the hospital (Id. ¶ 2). She became a registered nurse ( RN ), 10 and she worked in various departments in different positions, including a supervisor position 11 (Id.). In 2004, she worked as a highly specialized RN in the Cardiac Catheterization Lab 12 ( Cath Lab ) (Id. ¶ 3). Up until an incident that occurred on October 27, 2004, Plaintiff 13 performed her job satisfactorily (PSOF ¶ 2). 14 On July 1, 2004, Plaintiff complained to KRMC Human Resources ( HR ) Director 15 Heather Crowl about sex discrimination and race discrimination (Id. ¶ 52). With regards to 16 sex discrimination, Plaintiff alleged that Muslim doctors mistreated female nurses in the Cath 17 Lab (Id.). With regards to race discrimination, Plaintiff raised a prior incident in which an 18 employee had called her a damned Indian (Id.). Plaintiff also alleged that the Cath Lab 19 Supervisor, Jean Crilly, discriminated against a Hispanic agency nurse and against an 20 applicant for a tech position who Crilly thought was African American (Id.). 21 Plaintiff made informal and formal complaints both before and after the July 1, 2004 22 complaint. Plaintiff s Cath Lab Supervisor Bill Crome and former Director of Operational 23 Services Mike Clark told Crowl that Plaintiff had a history of creating problems centered 24 25 26 27 2 Both parties use the terms Indian and Native American interchangeably. The Court will also use the terms interchangeably for the reasons discussed in Dawavendewa v. Salt River Project Agricultural Improvement and Power District. 154 F.3d 1117, 1118 n. 1 (9th Cir. 1998) (recognizing that the term Native American has become a part of the common parlance, but statutes and opinions use the term Indian). 28 -2- 1 around . . . discrimination claims (Id. ¶ 54). Chief Nursing Officer Beverly (Bev) Mracek, 2 R.N., an alleged decision maker, viewed Plaintiff as having a chip on her shoulder and not 3 being able to get past it the fact that she was Native American (PRSOF ¶ 25). Mracek 4 also stated that Plaintiff s discrimination complaints were a cloud she carries around with 5 her (Id.). 6 On October 27, 2004, two of Plaintiff s nephews experienced an automobile accident 7 (Id. ¶ 5). They were sent to KRMC s Emergency Department ( ED ) (Id.). While Plaintiff 8 was working in the Cath Lab, ED Nurse Faith McKinney called Plaintiff twice to make her 9 aware of her nephews presence in the ED (Id. ¶ 6). In response, Plaintiff and a Cath Lab co- 10 worker, Debbie Riger, R.N., went to the ED (Id.). Plaintiff learned that one of her nephews, 11 16-year-old Reid Smith, Jr., was in a trauma room (Id.). Plaintiff found her nephew and his 12 mother (her sister), Ann Has the Pipe, in the room (Id. ¶ 7). Ann Has the Pipe was upset and 13 crying (PSOF ¶ 23). Reid had been placed on a spinal backboard to stabilize his spine and 14 pelvis because he complained of pain (PRSOF ¶ 8). Reid was also uncovered, shivering from 15 cold, and needed to use the restroom (Id. ¶ 6). Plaintiff went to the nurses station in order 16 to get a warm blanket and a portable urinal for him to relieve himself (Id.). Plaintiff also 17 tried to figure out how to help alleviate his pain (Id.). Plaintiff asked McKinney if the 18 treating physician had seen the patient, if x-rays had been completed, and if C-spine 19 precautions were no longer in use (Id. ¶ 9). McKinney responded affirmatively (Id.). After 20 McKinney left the room, Plaintiff asked her sister if she knew why Reid was still on the 21 backboard, and her sister replied that she did not (Id.). Plaintiff also conferred with Riger, 22 and they both decided to remove Reid from the backboard in order to ease his pain and 23 discomfort (Id.; PSOF ¶ 23). No doctor had ordered the removal of the backboard (PRSOF 24 ¶ 12). Plaintiff and Riger then removed Reid from the backboard (Id. ¶ 9). 25 KRMC had assigned Dr. Michael Ward as Reid s treating physician (Id. ¶ 13). On 26 the same day that Plaintiff removed the backboard, Plaintiff and her sister filed an internal 27 complaint against Dr. Ward (Id. ¶ 15). Dr. Ward made an inappropriate remark to Reid that 28 they believed was sexual harassment (Id.). During a digital rectal exam, Dr. Ward made a -3- 1 statement along the lines of, Don t expect to marry me after this and don t be calling late 2 at night (Id. ¶ 16). Reid is a teenage boy with long hair. During the rectal exam, he was 3 half-naked with his mother and another male doctor or intern present (Id.). Plaintiff, Ann 4 Has the Pipe, and Reid considered Dr. Ward s remarks highly offensive (Id.). 5 On November 4, 2004, KRMC terminated Plaintiff because she removed the 6 backboard from her nephew Reid (PSOF ¶ 3). HR Director Crowl, Cath Lab Supervisor 7 Crome, Chief Nursing Officer Mracek, and Chief Financial Officer/Chief Operations Officer 8 ( CFO/COO ) Larry Lewis were the four decision makers (Dkt. 90, 4:8-5:19). KRMC stated 9 these reasons for Plaintiff s termination: (1) practice outside the scope of her nursing license, 10 (2) interference with patient treatment, and (3) unprofessional behavior (PSOF ¶ 4). 11 Like Plaintiff, Dennis Sherer worked as a registered nurse under Bill Crome s ultimate 12 supervision (Id. ¶ 15). In 2005 while inserting a PICC line, Sherer administered fluoroscopy 13 to a patient without a radiologist present (Id. ¶ 21). A PICC line is intended to run 14 intravenously to the patient s heart (PRSOF ¶ 29). A radiologist takes a flouroscopy (a 15 radiological image) of the patient s chest during the procedure to ensure that the line was 16 properly placed (Id. ¶ 30). On April 4, 2005, KRMC warned Sherer against practicing 17 outside the scope of his license (Id. ¶ 28). KRMC did not terminate Sherer at this time. 18 On January 8, 2007, Plaintiff filed her Second Amended Complaint asserting five 19 claims: (1) race discrimination in violation of Title VII of the 1964 Civil Rights Act ( Title 20 VII ), (2) race discrimination in violation of 42 U.S.C. § 1981 ( Section 1981"), (3) 21 retaliation in violation of Title VII, (4) retaliation in violation of 42 U.S.C. § 1981, and (5) 22 intentional infliction of emotional distress (Dkt. 12).3 STANDARD OF REVIEW 23 24 A court must grant summary judgment if the pleadings and supporting documents, 25 viewed in the light most favorable to the nonmoving party, show that there is no genuine 26 27 28 3 During her deposition, Plaintiff testified she was also pursuing a gender discrimination claim, and her attorneys reserved the right to bring one. However, Plaintiff did not allege this claim in her Second Amended Complaint. Therefore, the Court will not entertain such claim. -4- 1 issue as to any material fact and that the moving party is entitled to judgment as a matter of 2 law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 3 Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law 4 determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 5 (1986); see also Jesinger, 24 F.3d at 1130. Only disputes over facts that might affect the 6 outcome of the suit under the governing law will properly preclude the entry of summary 7 judgment. Anderson, 477 U.S. at 248. The dispute must also be genuine. That is, the 8 evidence must be such that a reasonable jury could return a verdict for the nonmoving 9 party. Id.; see Jesinger, 24 F.3d at 1130. 10 A principal purpose of summary judgment is to isolate and dispose of factually 11 unsupported claims. Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 12 against a party who fails to make a showing sufficient to establish the existence of an 13 element essential to that party s case, and on which that party will bear the burden of proof 14 at trial. Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 15 1994). The moving party need not disprove matters on which the opponent has the burden 16 of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment 17 need not produce evidence in a form that would be admissible at trial in order to avoid 18 summary judgment. Id. at 324. However, the nonmovant may not rest upon the mere 19 allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing 20 that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., 21 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint 22 Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). DISCUSSION 23 24 KRMC seeks summary judgment on all of Plaintiff s claims, asserting that her race 25 discrimination claims fail under McDonnell Douglas, her retaliation claims fail for lack of 26 a nexus, and she cannot prove her intentional infliction of emotional distress claim (Dkt. 77). 27 /// 28 /// -5- 1 I. Race Discrimination under Title VII and Section 1981 2 In her Second Amended Complaint, Plaintiff asserts a race discrimination claim under 3 Title VII and Section 1981 against KRMC for terminating her on November 4, 2004 (Dkt. 4 12, ¶¶ 20, 22). Title VII protects against discrimination on the basis of an individual s race, 5 color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). A person suffers disparate 6 treatment in his employment when he or she is singled out and treated less favorably than 7 others similarly situated on account of race. See McGinest v. GTE Serv. Corp., 360 F.3d 8 1103, 1121 (9th Cir. 2004) (quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th 9 Cir. 1988)). In analyzing claims under Section 1981, courts apply the same legal principles 10 as those applicable in a Title VII disparate treatment case. Metoyer v. Chassman, 504 F.3d 11 919, 930 (9th Cir. 2007) (quoting Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 12 850 (9th Cir. 2004). Therefore, the Court will analyze Plaintiff s race discrimination claims 13 under Title VII and Section 1981 together. 14 A. Prima Facie Case 15 To establish a prima facie case under Title VII and Section 1981, plaintiff must offer 16 proof that (1) she is a member of a protected class; (2) she was qualified for her position; (3) 17 she experienced an adverse employment action; and (4) similarly situated individuals outside 18 her protected class were treated more favorably, or other circumstances surrounding the 19 adverse employment action give rise to an inference of discrimination. See McDonnell 20 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If plaintiff establishes a prima facie case, 21 then defendant has the burden of producing a legitimate nondiscriminatory reason for its 22 employment decision. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). If 23 defendant meets this burden, plaintiff must raise a genuine issue of material fact that 24 defendant s reason is a pretext for discrimination i.e., the reason is false or the true reason 25 was a discriminatory one. See id. 26 Here, Plaintiff established the first three elements of a prima facie disparate treatment 27 claim on the basis of race. Plaintiff submitted proof: (1) that she is Native American, a 28 protected class under Title VII (PSOF ¶ 1); (2) that she was qualified for her position as a -6- 1 R.N. (Id. ¶ 2; PRSOF ¶¶ 2-3); and (3) that she was terminated, an adverse employment action 2 (PSOF ¶ 2). See McDonnell Douglas, 411 U.S. at 802. 3 In order to establish the fourth element that similarly-qualified employees outside her 4 protected class were treated more favorably, Plaintiff presents evidence that KRMC 5 disciplined three other registered nurses, Dennis Sherer, Erin Moore, and Debra Riger, in a 6 more favorable manner (PSOF ¶¶ 10-22, 28-39). KRMC argues, though, that Plaintiff cannot 7 prove she was treated less favorably than a similarly situated employee outside her protected 8 class (Dkt. 77, 4:17-18). 9 A plaintiff must show that she is similarly situated to those employees in all material 10 respects. Moran v. Selig 447 F.3d 748, 755 (9th Cir. 2006) (citing Aragon v. Republic 11 Silver State Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002)). Individuals are similarly 12 situated when they have similar jobs and display similar conduct. Vasquez v. County of Los 13 Angeles, 349 F.3d 634, 641 (9th Cir. 2003). a. Dennis Sherer 14 15 Plaintiff cites Dennis Sherer as a similarly situated registered nurse who practiced 16 outside the scope of his nursing license and exhibited unprofessional behavior (PSOF ¶¶ 15- 17 22). However, KRMC did not terminate him (Id. ¶ 13). KRMC contends that Sherer is not 18 similarly situated because he did not display similar conduct of comparable seriousness (Dkt. 19 77, 4:21-5:2). Furthermore, KRMC alleges that Sherer is Native American, and therefore, 20 he is within Plaintiff s protected class (DSOF ¶¶ 39-40). 21 First, KRMC essentially argues that Sherer could not have possibly harmed his patient 22 while inserting the PICC line on April 4, 2005; therefore, Sherer s conduct was entirely 23 different than Plaintiff s (Dkt. 77, 6:17-18). Courts have found employees were not similarly 24 situated when they did not engage in problematic conduct of comparable seriousness. See 25 Vasquez, 349 F.3d at 641. Both Sherer and Plaintiff committed the same offense practice 26 outside the scope of a nursing license (PSOF ¶ 18). Both Sherer and Plaintiff allegedly acted 27 out of concerns for the patient s comfort and/or safety (DSOF ¶ 32; PRSOF ¶ 6; Dkt. 90, 28 6:17-23). -7- 1 As such, the heart of the parties dispute is whether Sherer could have seriously 2 harmed his patient, which might make the conduct of comparable seriousness to Plaintiff s. 3 Plaintiff alleges that Sherer could have harmed his patient by administering the fluoroscopy 4 (PRSOF ¶ 32), which KRMC denies. Further, Plaintiff alleges Sherer put the patient in 5 grave danger by leaving the patient with an unsecured catheter near the heart in order to find 6 the radiologist (Id.). The unsecured catheter could have migrated into the heart causing 7 fibrillation leading to cardiac arrest (Id.). KRMC alleges it reported Sherer s conduct to the 8 appropriate regulatory agency, which took no disciplinary action against him (DSOF ¶¶ 35- 9 37). However, Plaintiff disputes that KRMC properly reported Sherer (PRSOF ¶¶ 35-37). 10 Ultimately, neither Sherer s patient or Plaintiff s nephew received any harm (Dkt. 90, 6:25- 11 26). Based on the evidence before the Court, the Court cannot determine as a matter of law 12 whether Sherer or Plaintiff could have harmed his patient or her nephew, respectively. 13 Plaintiff has raised a genuine dispute over a material fact of whether Sherer s conduct was 14 of comparable seriousness to Plaintiff s. 15 Furthermore, Plaintiff alleges that Sherer received more favorable treatment. Before 16 the 2005 incident with the PICC line, KRMC had previously warned Sherer against practice 17 outside the scope of his license. Plaintiff s husband Ray Eakerns, who was Sherer s 18 immediate supervisor, had repeatedly verbally warned Sherer against administering 19 fluoroscopy without a radiologist present (PRSOF ¶ 36). Sherer admitted that Eakerns 20 verbally warned him at least three to five times (PSOF ¶ 28). Plaintiff also produced 21 evidence that KRMC warned Sherer in writing through his 2001-2002 performance 22 evaluation that he overstep[s] his boundaries by doing things that should be done by a 23 physician. This must cease immediately (Dkt. 89, Ex. 47). Moreover, Plaintiff also 24 produced evidence that Sherer received other disciplinary warnings, including one for 25 gambling on the job (PSOF ¶ 17). After the 2005 incident, KRMC placed Sherer on leave 26 for three days, and then he returned to work (PRSOF ¶ 34). KRMC continued its 27 investigation from April 5, 2005 to June 7, 2005 (Id.). In contrast, Plaintiff had been 28 performing her job satisfactorily up until the October 27, 2004 incident (PSOF ¶ 2). HR -8- 1 Director Crowl oversaw both Sherer s and Plaintiff s investigations, and she participated in 2 the decision making. While Crowl recommended Plaintiff s termination, she recommended 3 only a warning for Sherer. While Crowl s investigation of Sherer lasted over two months, 4 Plaintiff alleges that Crowl s investigation of her lasted one day (Id. ¶ 30). Another 5 employee, Crome, did not even conduct an investigation before KRMC fired Plaintiff (Id.). 6 Plaintiff has created an inference that KRMC treated a similarly situated employee more 7 favorably. 8 Second, KRMC advances an uncommon argument that Sherer is part Native American 9 so that he is within Plaintiff s protected class. Plaintiff contends that KRMC and Sherer have 10 acted with the understanding that Sherer was white (Dkt. 90, 3:2-3). Title VII must be 11 construed liberally in order to effectuate the broad remedial purpose of Congress to eliminate 12 the inconvenience, unfairness, and humiliation of ethnic discrimination. Silver v. KCA, 13 Inc., 586 F.2d 138, 141 (9th Cir. 1978) (internal citation omitted). Title VII s objective is 14 to achieve equality of employment opportunities and remove barriers that have operated in 15 the past to favor an identifiable group of white employees over other employees. Gibson 16 v. Local 40, Supercargoes and Checkers of Intern. Longshoremen s and Warehousemen s 17 Union, 543 F.2d 1259, 1265 (9th Cir. 1976) (quoting Griggs v. Duke Power Co., 401 U.S. 18 424, 429-30 (1971) (emphasis added)). 19 The Ninth Circuit has considered a plaintiff s allegation that an individual is white 20 looking. In Aragon v. Republic Silver State Disposal Inc., a white plaintiff alleged that his 21 employer laid off white or white-looking individuals while non-white individuals remained 22 employed. 292 F.3d at 657. In the lay-off context, plaintiff must show that his layoff 23 occurred under circumstances giving rise to an inference of discrimination Id. at 660 24 (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). The Ninth Circuit 25 upheld the district court s finding that plaintiff had put forth sufficient evidence of white or 26 white-looking individuals being laid off in order to meet his minimal prima facie burden. Id. 27 at 660. 28 /// -9- 1 Plaintiff alleges that Sherer identifies himself as a white employee, and KRMC 2 employees view Sherer as such (PSOF ¶¶ 10-14; PRSOF ¶¶ 39-40). For instance, Ryan 3 Kennedy, who disciplined and later discharged Sherer in April 2008, testified that he 4 understood Sherer was a white male (Dkt. 90, Ex. 7, 31:4-6, 93:8-20). Furthermore, Plaintiff 5 has produced evidence that KRMC identified him as a white employee on a personnel 6 document (Dkt. 90, Ex. 25). The Court refrains from determining whether Sherer is a Native 7 American. While the term Indian may have a particular meaning under a specific statute,4 8 Title VII must be liberally construed to remove barriers that operate to favor an identifiable 9 group of white employees over other employees. See Silver, 586 F.2d at 141; Gibson, 543 10 F.2d at 1265. Therefore, Plaintiff has met her minimal showing necessary to establish a 11 prima facie case by producing evidence of white or white-looking individuals who were 12 treated more favorably. See Aragon, 292 F.3d at 660; see also Chuang v. Univ. of Cal. 13 Davis, Bd. of Trustees., 225 F.3d 1115, 1124 (9th Cir. 2000) ( Under the McDonnell 14 Douglas framework, [t]he requisite degree of proof necessary to establish a prima facie case 15 for Title VII . . . on summary judgment is minimal and does not even need to rise to the level 16 of a preponderance of the evidence. ) (quotation omitted). b. Erin Moore 17 18 Plaintiff also cites Erin Moore as a similarly situated registered nurse who practiced 19 outside the scope of her nursing license. Plaintiff alleges that Moore took KRMC supplies 20 and provided intravenous (IV) treatment to another KRMC employee, Henry Mayo, in his 21 home (PSOF ¶ 34; PRSOF ¶ 42). Plaintiff further alleges that she reported this practice 22 outside the scope of a nursing license to her supervisor, Crome (PSOF ¶ 34). 23 24 25 26 27 28 4 Recently, the Ninth Circuit grappled again with the question of whether a particular individual counts as an Indian for the United States government to exercise criminal jurisdiction over him. United States v. Cruz, 554 F.3d 840, 842 (9th Cir. 2009). In this context, the Ninth Circuit applied its specific test for determining whether an individual can be prosecuted by the federal government under 18 U.S.C. § 1153." Id. This test requires the government to prove that a defendant has a sufficient degree of Indian blood, and has tribal or federal government recognition as an Indian. Id. at 845. - 10 - 1 KRMC alleges that it has no record of Moore practicing outside the scope of her 2 nursing license, and Plaintiff has no evidence to support her claim (DSOF ¶ 43). Because 3 there is no evidence that KRMC knew of Moore s conduct, KRMC argues that Moore is not 4 similarly situated to Plaintiff (Dkt. 77, 8:11-18). KRMC cites the Second Circuit s decision 5 in Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997), as authority. In 6 Shumway, the Second Circuit concluded that [i]t is impossible to demonstrate that UPS 7 treated similarly situated males differently when there is no evidence that UPS knew about 8 any other violations. Id. at 64-65. The Second Circuit found that plaintiff s sweeping 9 allegations were conclusory statements unsupported by admissible evidence. Id. at 65. 10 Therefore, the Second Circuit held that plaintiff had not raised a genuine issue of material 11 fact and granted summary judgment in defendant s favor. Id. 12 Although the Second Circuit s decision is not controlling here, the Court finds their 13 reasoning persuasive. While Plaintiff alleges that she told Crome about Moore s behavior, 14 Plaintiff has not produced any evidence that KRMC had knowledge or a record of Moore 15 engaging in this improper behavior (See PRSOF ¶¶ 45-46). Plaintiff never documented this 16 practice or submitted a written complaint to KRMC (Id.). Furthermore, KRMC alleges that 17 it only learned of this allegation after Plaintiff filed her EEOC charge (DSOF ¶ 46). Indeed, 18 this is the only written report about Moore s behavior produced. KRMC then conducted an 19 investigation, which produced no evidence of the alleged improper conduct (Id.). Plaintiff s 20 allegations are conclusory statements unsupported by admissible evidence, and Plaintiff 21 cannot demonstrate that KRMC treated Moore differently when there is no evidence that 22 KRMC knew about her improper behavior. See Shumway, 118 F.3d at 64-65. As KRMC 23 did not treat Moore differently, the Court need not address KRMC s allegations that Moore 24 is also part Native American. 25 c. Debra Riger 26 Finally, Plaintiff presents Debra Riger as a similarly situated registered nurse who 27 practiced outside the scope of her nursing license. Riger was present during the October 27, 28 2004 incident that led to Plaintiff s termination (PSOF ¶ 23). KRMC admits that Plaintiff - 11 - 1 conferred with Riger, and they both decided to remove Plaintiff s nephew from the 2 backboard (Dkt. 93, Def. s Response to PSOF ( DRSOF ) ¶ 23). Plaintiff further alleges 3 that Riger helped Plaintiff remove the backboard from her nephew (PSOF ¶ 37). Similar to 4 its arguments regarding the Moore allegations, KRMC claims it had no knowledge of Riger s 5 participation in the incident. Further, KRMC claims Plaintiff did not identify Riger when 6 KRMC first disciplined her, when she confronted Dr. Ward, or when she was terminated 7 (DSOF ¶¶ 51-53). Therefore, KRMC argues that Riger is not a similarly situated employee 8 (Dkt. 77, 10:2-7). However, this situation can be distinguished from Moore s because 9 KRMC admits that it knew another nurse was with Plaintiff at the time she removed the 10 backboard from her nephew (DRSOF ¶ 38). Further, KRMC admits that it did not 11 investigate Riger s involvement in the incident, and it accepted McKinney s statement at face 12 value that the ED staff did not help Plaintiff (Id. ¶ 39). Unlike KRMC s argument regarding 13 Moore that it had no knowledge of her actions, KRMC knew of the backboard incident and 14 had an opportunity to investigate. Although KRMC argues that it was not made aware of 15 Riger s involvement, it did not investigate the incident when it knew another employee could 16 be involved. The fact that KRMC did not investigate Riger also lends support to Plaintiff s 17 allegation that KRMC treated Riger, a white employee, more favorably. 18 The Court finds that Plaintiff has produced the requisite degree of proof necessary to 19 establish a prima facie case that other employees with similar qualifications were treated 20 more favorably. See Chuang, 225 F.3d at 1124 ( Under the McDonnell Douglas framework, 21 [t]he requisite degree of proof necessary to establish a prima facie case for Title VII . . . on 22 summary judgment is minimal and does not even need to rise to the level of a preponderance 23 of the evidence. ) (quotation omitted). As a result, Plaintiff is entitled to a presumption that 24 KRMC terminated her because she is Native American. See McDonnell Douglas, 411 U.S. 25 at 802. The burden now shifts to KRMC to produce evidence of a legitimate and 26 non-discriminatory reason for terminating Plaintiff. Vasquez, 349 F.3d at 640. 27 /// 28 /// - 12 - 1 B. Legitimate and Non-discriminatory Reasons 2 Plaintiff concedes that she removed the backboard without a physician s orders 3 (PRSOF ¶ 12). KRMC presents evidence that this action constitutes practice outside the 4 scope of a nursing license. By presenting evidence that it terminated Plaintiff for practice 5 outside the scope of her nursing license, interference with patient treatment, and 6 unprofessional behavior, KRMC has met its burden of demonstrating legitimate and 7 non-discriminatory reasons for terminating Plaintiff s employment (See DSOF ¶ 22). 8 C. Pretext 9 Plaintiff is now required to produce evidence sufficient to create a genuine issue of 10 fact as to whether KRMC s legitimate and non-discriminatory reasons were a mere pretext 11 for discrimination. Plaintiff can show pretext directly, by showing that discrimination more 12 likely motivated the employer, or indirectly, by showing that the employer s explanation is 13 unworthy of credence because it is inconsistent or otherwise not believable. Vasquez, 349 14 F.3d at 641; Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005). 15 To show pretext using circumstantial evidence, a plaintiff must put forward specific and 16 substantial evidence challenging the credibility of the employer s motives. Vasquez, 349 17 F.3d at 642; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) (holding that 18 circumstantial evidence of pretense must be specific and substantial in order to create 19 a triable issue). 20 Both Plaintiff and KRMC focused much of their arguments on Plaintiff s burden to 21 establish a prima facie case of discrimination. As noted, a prima facie case of discrimination 22 requires a minimal showing, which Plaintiff has met. When discussing pretext, both parties 23 used conclusory statements rather than factual analysis (See Dkt. 77, 10:20-24) ( Whatever 24 other evidence Eakerns may have to establish a prima facie case, she cannot prove that 25 KRMC s reasons for ending her employment were pretextual, and that the real reason for her 26 discharge was discrimination. ) (See also Dkt. 90, 13:18-27). KRMC did not advance its 27 substantive arguments regarding pretext until its reply, and Plaintiff did not have the 28 opportunity to respond to them (See Dkt. 92, 4:7-5:17). As the same evidence that makes out - 13 - 1 a prima facie case may be relied upon to establish pretext, the Court will treat Plaintiff s 2 arguments regarding racial bias and similarly situated employees as her position regarding 3 pretext. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 732 (9th Cir. 1986). When 4 viewed in the light most favorable to Plaintiff, this argument creates a genuine issue of 5 material fact as to whether KRMC terminated Plaintiff because she is Native American. 6 1. Racial Bias Demonstrating Pretext 7 Plaintiff has offered direct evidence of discriminatory intent. Direct evidence is 8 evidence which, if believed, proves the fact [of discriminatory animus] without inference or 9 presumption. Godwin, 150 F.3d at 1221 (internal quotation marks omitted) (alteration in 10 original). Where an individual who exhibits bias has significant influence or leverage over 11 the formal decision maker, such evidence is sufficient evidence of discrimination to defeat 12 summary judgment. Dominguez-Curry, 424 F.3d at 1040 n.5. With direct evidence, a 13 triable issue as to the actual motivation of the employer is created even if the evidence is not 14 substantial. Chuang, 225 F.3d at 1128 (citations omitted). 15 Plaintiff has presented evidence of Chief Nursing Officer Mracek s testimony that she 16 viewed Plaintiff as having a chip on her shoulder and not being able to get past it the 17 fact that she was Native American (PRSOF ¶ 25). KRMC contends that these statements are 18 taken out of context. Mracek testified as follows: 19 20 21 22 23 24 25 26 27 28 Q. Do you recall, again, other than the incidents leading to the termination, any discipline of Ms. Eakerns, whether you were involved or not? A. You know, I m trying to think if I m not sure. ... She had an attitude, and it was a known thing that she had an attitude. So whether there were conversations with me by her various managers throughout her years at the hospital about her attitude, I can t honestly tell you, but I know about these things. So my gut tells me that, yes, someone has talked to me about it; otherwise, how would I know? Does that make sense? Q. It does. A. I can t tell you who did, and I can t tell you what they said, other than to tell you that when you say Jeanette, I think She s got an attitude. She let it be known. Q. Tell me what you mean by attitude. A. Well, it was a common it was just common knowledge that she felt that because she was Native American, that somehow or other, the world treated her differently or saw her differently. That was from Jeanette s mind. I m not saying that s how anyone felt. - 14 - 1 7 Q. When you say, common knowledge, can you give me any specific examples that you base that on? A. I can t remember any I cannot specifically remember any conversations. I can just tell you that she s got a chip on her shoulder. I m just being honest with you. Q. Sure. I m just asking for what you know or what you recall and your truthful testimony. A. The fact that she s Native American, to her, she couldn t get past it. It doesn t bother anybody else. Nobody you don t even think about that she s Native American, but she couldn t get past it. Q. Do you recall having any specific conversations with Ms. Eakerns about this issue, this chip on her shoulder? A. No. 8 (Dkt. 89, Ex. 6, Dep. of Beverly Mracek 31:4-32:23). As evidenced, Mracek testified that 9 she and other managers viewed Plaintiff as having an attitude about her race. Mracek also 10 stated that Plaintiff couldn t get past it (Id.). While Mracek qualified these statements by 11 testifying the fact that Plaintiff is Native American does not bother anyone, Mracek reiterated 12 that Plaintiff couldn t get past it (Id.). At worst, Mracek implied that Plaintiff s race is akin 13 to a handicap or condition that she should overcome. Even taking Mracek s statements at 14 face value, Mracek stated that Plaintiff simply needed to forget that she is Native American. 15 Mracek s statements could be construed as direct evidence of discriminatory animus. When 16 viewed in a light most favorable to Plaintiff, a jury could conclude that Plaintiff suffered 17 disparate treatment in her employment by being singled out and treated less favorably than 18 others similarly situated on account of race. See McGinest, 360 F.3d at 1121 (internal 19 quotation marks omitted). Even if this evidence of Mracek s testimony is not substantial, this 20 direct evidence creates a triable issue as to the motivation of Mracek and KRMC. See 21 Chuang, 225 F.3d at 1128 (citations omitted). 2 3 4 5 6 22 Furthermore, Mracek, an alleged decision maker, testified that various managers 23 throughout the hospital had conversations with her about Plaintiff. These managers may 24 have exhibited bias and significant influence or leverage over Mracek, which is also 25 sufficient evidence of discrimination to defeat summary judgment. See Dominguez-Curry, 26 424 F.3d at 1040 n.5. 27 /// 28 /// - 15 - 1 2. 2 Plaintiff also presents circumstantial evidence of KRMC s discriminatory intent. 3 Plaintiff argues that the manner in which KRMC investigated her demonstrates pretext. 4 Plaintiff also relies on the differences in KRMC s discipline between her and the similarly 5 situated nurses. The Manner of Investigation and Pretext 6 As noted, showing that KRMC treated similarly situated employees outside Plaintiff s 7 protected class more favorably would be probative of pretext. See Vasquez, 349 F.3d at 641. 8 Individuals are only similarly situated when they have similar jobs and display similar 9 conduct. Id. In addition, showing that the same individual conducted investigations is 10 significant because the individual in charge of an investigation has tremendous influence 11 over how the investigation is conducted. See Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659 12 (6th Cir. 1999) (holding that, to be similarly situated, an employee must have the same 13 supervisor, be subject to the same standards, and have engaged in the same conduct), cited 14 with approval in, Vasquez, 349 F.3d at 642 n.17; Wheeler v. Aventis Pharms., 360 F.3d 853, 15 859 (8th Cir. 2004) (finding that technique employed during an investigation is a matter of 16 business judgment). However, differences in the type of discipline in the instant case and 17 other investigations are not evidence that an employer was motivated by discriminatory 18 intent, or that an employer s explanation is not believable for some other reason. See 19 Vasquez, 349 F.3d at 642 (emphasis added). 20 Plaintiff presented evidence that Sherer and Riger were accused of similar misconduct 21 or misconduct of comparable seriousness. See Vasquez, 349 F.3d at 641. In addition, 22 Plaintiff has shown that Crowl conducted both Plaintiff s and Sherer s investigation (PSOF 23 ¶¶ 28-30). Although Sherer only received a warning and Riger did not receive any 24 discipline, the differences in the type of discipline are not evidence of pretext. See Vasquez, 25 349 F.3d at 642. However, KRMC investigated Sherer for a lengthy period of time, and it 26 did not investigate Riger at all. In contrast, KRMC terminated Plaintiff after a relatively 27 short investigation, and Plaintiff had no prior warnings or disciplinary reports (PSOF ¶¶ 27- 28 30). - 16 - 1 The issue before this Court is whether KRMC conducted a thorough investigation and 2 whether they made credibility determinations reasonably and in good faith. See Villiarimo 3 v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (material fact is not whether 4 employee actually committed misconduct, but rather, whether employer honestly believed 5 its reason for its actions, even if its reason is . . . baseless ) (citation omitted). At the same 6 time, the failure to pursue all leads is not evidence that an investigation was unreasonable. 7 Holly D. v. Calif. Inst. of Tech., 339 F.3d 1158, 1177-78 (9th Cir. 2003); Wheeler, 360 F.3d 8 at 859 (finding that the technique employed during an investigation is a matter of business 9 judgment). 10 In essence, Plaintiff argues that KRMC did not conduct a thorough investigation 11 (PSOF ¶ 30). KRMC concedes that Crowl s purported investigation lasted one day and 12 Crome did not even conduct an investigation before KRMC terminated Plaintiff (DRSOF ¶ 13 30). In contrast, Sherer s investigation lasted over two months (Id.). KRMC did not 14 interview several people who were present during the backboard incident, such as Reid 15 Smith, Jr., Ann Has the Pipe, or Debra Riger (PRSOF ¶ 17). When a patient makes a 16 complaint, such as a sexual harassment complaint, KRMC s normal practice is to at least 17 interview the patient (Id.). While KRMC is not required to pursue all leads, it is a question 18 of fact for the jury whether failing to question several key witnesses before terminating 19 Plaintiff is reasonable. Plaintiff has raised a genuine dispute of material fact whether KRMC 20 made reasonable, good faith credibility determinations. 21 Plaintiff has offered direct and circumstantial evidence that KRMC s reason for 22 terminating her was not its true motive or that its explanation for her termination is unworthy 23 of credence. See Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004) (plaintiff may 24 prove pretext either directly by persuading the court that a discriminatory reason more likely 25 motivated the employer or indirectly by showing that the employer s proffered explanation 26 is unworthy of credence). Therefore, the Court will deny summary judgment as to Plaintiff s 27 race discrimination claims under Title VII and Section 1981. 28 /// - 17 - 1 II. Retaliation under Title VII and Section 1981 2 Plaintiff alleges retaliation in violation of Title VII and Section 1981 (Dkt. 12, Second 3 Am. Compl. ¶¶ 24, 26-27). Title VII makes it an unlawful employment practice for an 4 employer to discriminate against an individual because she has opposed any employment 5 practice made unlawful by Title VII, or because she has made a charge, testified, assisted, 6 or participated in any manner in an investigation under Title VII. 42 U.S.C. § 2000e-3(a). 7 To establish a prima facie retaliation claim under Title VII and Section 1981, an employee 8 must show that (1) she engaged in a protected activity; (2) her employer subjected her to an 9 adverse employment action; and (3) a causal link exists between the protected activity and 10 the adverse action. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 11 506 (9th Cir. 2000); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); Little v. 12 Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002). If plaintiff has shown a 13 prima facie retaliation claim, then the burden shifts to defendant to furnish legitimate 14 nondiscriminatory reasons for the adverse employment action. Ray, 217 F.3d at 1240. 15 If defendant meets that burden, then plaintiff bears the ultimate burden of 16 demonstrating that the reason was merely a pretext for a discriminatory motive. Id. Plaintiff 17 may show pretext either directly by persuading the court that a discriminatory reason more 18 likely motivated the employer or indirectly by showing that the employer s proffered 19 explanation is unworthy of credence. Villiarimo, 281 F.3d at 1062. Circumstantial 20 evidence relied on to show pretext must be both specific and substantial. Id. 21 A. Protected Activity 22 Plaintiff filed a sexual harassment complaint and race discrimination complaints on 23 October 27, 2004 prior to her termination. Plaintiff contends that she had a reasonable belief 24 that Dr. Ward committed sexual harassment when he treated her nephew. Plaintiff further 25 alleges that KRMC terminated Plaintiff in retaliation for these complaints (PSOF ¶ 6). 26 KRMC argues that the sexual harassment complaint is not a protected activity because Title 27 VII only protects employees, and Reid Smith was not an employee but a patient. 28 - 18 - 1 Title VII provides in relevant part that [i]t shall be an unlawful employment practice 2 for an employer to discriminate against any of his employees . . . because [the employee] has 3 opposed any practice made an unlawful employment practice by this subchapter . . . 42 4 U.S.C. § 2000e-3(a) (emphasis added). Title VII is only directed at the eradication of 5 discrimination by employers against employees. Silver, 586 F.2d at 140-42. In order to be 6 a protected activity, the plaintiff s opposition must have been directed toward an unlawful 7 employment practice by an employer or an agent of an employer. See id. (employee s 8 opposition to a racially discriminatory act of a co-employee cannot be the basis for a 9 retaliation action); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013-14 (9th Cir. 10 1983) (employee s objections to discriminatory practices by the warehouse personnel 11 manager, on facts presented, constituted objections to discriminatory actions of the 12 employer). Informal as well as formal complaints or demands are protected activities under 13 Title VII. See Passantino, 212 F.3d at 506. 14 Only reasonable opposition to the employment practice is protected by Title VII. 15 See, e.g., Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1354-56 (9th Cir. 1984); Crown 16 Zellerbach, 720 F.2d at 1015. It is unnecessary that the employment practice actually be 17 unlawful; opposition thereto is protected when it is based on a reasonable belief that the 18 employer has engaged in an unlawful employment practice. Little, 301 F.3d at 969 19 (quoting Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994). The reasonableness of an 20 employee s belief must be assessed according to an objective standard that makes allowance 21 for the limited knowledge possessed by most Title VII plaintiffs about the factual and legal 22 bases of their claims. Moyo, 40 F.3d at 985 (holding that the discrimination victims 23 employment status was irrelevant because plaintiff could bring his retaliation claim either by 24 showing that he was required to discriminate as a condition of his employment or that he had 25 a reasonable belief an unlawful employment practice occurred). A plaintiff may make a 26 reasonable mistake of fact or law. Id. Furthermore, Title VII is construed broadly as it 27 applies to the reasonableness of a plaintiff s belief that a violation occurred. Id. (citing 28 - 19 - 1 Davis v. Valley Distrib. Co., 522 F.2d 827 (9th Cir. 1975), cert. denied, 429 U.S. 1090 2 (1977)). 3 Plaintiff s belief that Dr. Ward engaged in an unlawful employment practice by 4 sexually harassing her nephew is erroneous. Plaintiff s nephew is not a KRMC employee, 5 rather he was a patient. Title VII only protects Plaintiff s opposition against a practice made 6 an unlawful employment practice by a Title VII subchapter. In other words, Title VII only 7 applies to an employer s practices against employees. However, if Plaintiff had a reasonable 8 belief that Dr. Ward s behavior constituted an unlawful employment practice, even if it was 9 legally or factually erroneous, then Plaintiff engaged in a protected activity when she 10 reported the behavior. See Moyo, 40 F.3d at 985. Plaintiff has alleged that she had a 11 reasonable belief. 12 harassment policy, which states that Kingman Regional Medical Center will not tolerate 13 sexual harassment of or harassment by its employees, physicians, patients, or visitors (Dkt. 14 89, Ex. 15) (emphasis in original). The fact that KRMC specifically included patients in its 15 sexual harassment policy may have led Plaintiff to reasonably believe that Dr. Ward s actions 16 were unlawful under Title VII. For similar reasons, Plaintiff s other complaints about 17 KRMC s treatment of patients, many of whom were family members, may also be considered 18 protected activities.5 If KRMC specifically included patients in its anti-discrimination 19 policies, then Plaintiff may have had a reasonable belief within the Title VII context. In addition, Plaintiff has produced evidence of KRMC s sexual 20 21 22 23 24 25 26 27 28 5 In 2000, Plaintiff reported to Chief Nursing Officer Mracek of staff making negative comments about Native American patients, such as I have this drunk Indian over there (Dkt. 78, Ex. 11). In 2000, Plaintiff complained to CEO Brian Turney that her aunt had been airlifted from the Reservation to KRMC but was deceased on arrival, yet the ED physician did not tell her or her family that the aunt had died (PSOF ¶ 25). In 2002, Plaintiff s daughter received substandard care for a ruptured appendix, and the nurses acted like they did not want to touch her (Dkt. 78, Ex. 11). In March 2004, the ED admitted Plaintiff s sister for severe abdominal pain (Id.). However, the nurses initially ignored her pleas for help and called security (Id.). After Plaintiff intervened, her sister was diagnosed with kidney stones (Id.). Another nurse told Plaintiff that the ED staff had not treated her sister because they thought she was a drug addict seeking drugs (Id.). On October 27, 2004, Plaintiff complained to Mracek that ICU Manager Dan Emborsky had discriminated against her brother-in-law on the basis of race (PSOF ¶ 46). Plaintiff also complained that the ED had denied medical care to her nephew, Nick Bravo (Id. ¶ 48). - 20 - 1 In addition, KRMC ignores the race discrimination complaint that Plaintifff made in 2 conjunction with the sexual harassment complaint (See Dkt. 90, 11:26-27). Neither party has 3 alleged that the simultaneous race discrimination complaint did not pertain to Plaintiff. 4 Viewing the facts in the most favorable light to Plaintiff, the race discrimination complaint 5 was a protected activity. Furthermore, Plaintiff made other informal and formal race 6 discrimination complaints prior to her termination. By presenting evidence of a sexual 7 harassment complaint and race discrimination complaints, Plaintiff has established the first 8 element of a prima facie claim for disparate treatment she engaged in a protected activity. 9 B. Adverse Employment Action 10 On November 4, 2004, KRMC terminated Plaintiff. Actions such as firing and 11 demoting are adverse employment actions for purposes of a retaliation claim. See Burlington 12 No. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also Ray, 217 F.3d at 1242- 13 43 (an adverse action is an action that a reasonable employee would have found materially 14 adverse, which means it might have dissuaded a reasonable worker from making or 15 supporting a charge of discrimination ). Thus, Plaintiff has established the second element 16 of a prima facie claim that she suffered an adverse employment action. 17 C. Causal Link 18 KRMC argues that Plaintiff cannot show a causal link between a protected activity 19 and the employment decision (Dkt. 77, 14:1-5). To establish causation, Plaintiff relies on 20 timing (Dkt. 90, 12:16-13:1). 21 Proximity of time between protected activity and an adverse action may support an 22 inference of causation. Ray, 217 F.3d at 1244. It is [also] important to emphasize that it 23 is causation, not temporal proximity itself, that is an element of plaintiff s prima facie case, 24 and temporal proximity merely provides an evidentiary basis from which an inference can 25 be drawn. Porter v. Cal. Dept. of Corr., 419 F.3d 885, 895 (9th Cir. 2005) (emphasis added) 26 (citing Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)). Thus, the 27 court must look not only to timing but to all of the circumstances to determine whether an 28 - 21 - 1 inference of causation is possible. See Coszalter v. City of Salem, 320 F.3d 968, 978 (9th 2 Cir. 2003). 3 Plaintiff asserts that a causal connection between the complaints and KRMC s 4 decision to terminate her may be inferred from the temporal proximity. Plaintiff made her 5 complaints just eight days before KRMC discharged her (PSOF ¶ 30). Plaintiff also made 6 other race discrimination complaints, including a formal complaint to the HR Director less 7 than four months before on July 1, 2004 (Id. ¶ 52). KRMC contends that this complaint 8 related to a situation that occurred in November 2003 (Dkt. 77, 14:1-5). However, the Court 9 looks at the proximity of time between the adverse action and the protected activity, i.e. when 10 Plaintiff opposed an unlawful employment practice, not when the incident occurred. See 11 Ray, 217 F.3d at 1244. Even so, the complaints made four months earlier may not establish 12 a causal connection, but the complaints made just eight days before KRMC discharged 13 Plaintiff can establish causation. See Clark County School Dist. v. Breeden, 532 U.S. 268, 14 273-74 (2001) (holding that the temporal proximity must be very close and finding that a 15 one to four-month period is insufficient to establish a nexus based on temporal proximity 16 alone). 17 Moreover, other circumstances besides the timing lead to an inference of causation. 18 See Coszalter, 320 F.3d at 978. CFO/COO Larry Lewis is one of the four alleged decision 19 makers (Dkt. 90, 4:8-5:19). Plaintiff alleges that after she confronted Lewis about Dr. 20 Ward s alleged sexual harassment, Lewis became angry and stated that he would investigate 21 her for removal of the backboard (PSOF ¶ 49). Lewis s statement is also evidence of a 22 causal link between Plaintiff s protected activity and her termination. The Court finds that 23 Plaintiff has raised a genuine issue of material fact regarding a causal link because she 24 presents evidence to support an inference of causation. 25 D. Legitimate and Non-discriminatory Reasons 26 KRMC asserts it based the termination decision solely upon legitimate 27 nondiscriminatory reasons and not in retaliation for Plaintiff s sexual harassment and race 28 discrimination complaints (Dkt. 77, 11:11-16). - 22 - Therefore, KRMC contends that the 1 legitimate nondiscriminatory reasons destroy the nexus between the protected activity and 2 the adverse employment action (Id.). As noted, KRMC has furnished these legitimate non- 3 discriminatory reasons for terminating Plaintiff: practice outside the scope of her nursing 4 license, interference with patient treatment, and unprofessional behavior. Now, Plaintiff 5 bears the ultimate burden of demonstrating that the reasons were merely a pretext for a 6 discriminatory motive. Ray, 217 F.3d at 1240. 7 E. Pretext 8 Although KRMC does not use the term pretext, KRMC argues that its legitimate, 9 nondiscriminatory reasons destroy the timing presumption and causal link (Dkt. 92, 8:23-27). 10 Once again, KRMC did not advance a pretext argument until its reply, and Plaintiff did not 11 have the opportunity to respond to this argument. Regardless, Plaintiff has shown pretext 12 through direct evidence that decision makers were biased towards her and her discrimination 13 complaints. See Villiarimo, 281 F.3d at 1062. Mracek, an alleged decision maker, viewed 14 Plaintiff as having a chip on her shoulder and not being able to get past it the fact that 15 she was Native American (PRSOF ¶ 25). In addition, Crome and Clark told Crowl that 16 Plaintiff had a history of creating problems centered around . . . discrimination claims (Id.). 17 These statements demonstrate that KRMC was biased towards Plaintiff and her 18 discrimination claims. KRMC may have viewed Plaintiff s discrimination complaints as 19 problematic or did not take them seriously. Viewed in a light most favorable to Plaintiff, 20 Plaintiff has produced evidence sufficient to create a genuine issue of material fact that 21 KRMC s reasons for terminating her were mere pretext. 22 III. Intentional Infliction of Emotional Distress 23 In order to prevail on a claim of intentional infliction of emotional distress (IIED) 24 under Arizona law, a plaintiff must prove three elements: (1) the conduct by the defendant 25 must be extreme and outrageous ; (2) the defendant must either intend to cause emotional 26 distress or recklessly disregard the near certainty that such distress will result from his 27 conduct; and (3) severe emotional distress must indeed occur as a result of defendant s 28 conduct. Citizen Publ g Co. v. Miller, 210 Ariz. 513, 516, 115 P.3d 107, 110 (2005) (citing - 23 - 1 Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987)); Johnson v. McDonald, 197 2 Ariz. 155, 160, 3 P.3d 1075, 1080 (Ct. App. 1999). 3 For the first element, a plaintiff must show that the defendant s conduct was so 4 outrageous in character, and so extreme in degree, as to go beyond all possible bounds of 5 decency, and to be regarded as atrocious and utterly intolerable in a civilized community. 6 Johnson, 197 Ariz. at 160, 3 P.3d at 1080 (citing Cluff v. Farmers Ins. Exch., 10 Ariz. App. 7 560, 562, 460 P.2d 666, 668 (1969)). Even if a defendant s conduct is unjustifiable, it does 8 not necessarily rise to the level of atrocious and beyond all possible bounds of decency 9 that would cause an average member of the community to believe it was outrageous. 10 Nelson v. Phoenix Resort Corp., 181 Ariz. 188, 199, 888 P.2d 1375, 1386 (Ct. App. 1994) 11 (citations omitted). This standard distinguishes true claims from false ones, and . . . the 12 trifling insult or annoyance from the serious wrong. Godbehere v. Phoenix Newspapers, 13 Inc., 162 Ariz. 335, 339, 783 P.2d 781, 785 (Ariz. 1989) (quotation omitted). The court 14 determines whether the acts at issue are sufficiently outrageous to state a claim for relief. 15 Johnson, 197 Ariz. at 160, 3 P.3d at 1080 (citing Mintz v. Bell Atlantic Sys. Leasing Int l, 16 Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (Ct. App. 1995)). Only if reasonable minds 17 could differ about whether the conduct is sufficiently outrageous does the jury decide the 18 issue. Id. 19 In the employment context, it is extremely rare to find conduct . . . that will rise to 20 the level of outrageousness necessary to provide a basis for recovery for the tort of 21 intentional infliction of emotional distress. Mintz, 183 Ariz. at 554, 905 P.2d at 563 22 (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988), cert. denied, 498 23 U.S. 811 (1990)). Termination decisions and circumstances surrounding an employer s 24 method of discharging an employee, whether wrongful or not, generally do not rise to a level 25 of conduct extreme enough to establish an IIED claim. Id.; Nelson, 181 Ariz. at 200, 888 26 P.2d at 1387. 27 In this case, Plaintiff alleges that she suffered severe emotional distress as a result of 28 the November 4, 2004 termination (PSOF ¶ 58). However, Plaintiff has not shown that - 24 - 1 KRMC s termination of her constituted extreme or outrageous conduct. Her termination 2 occurred in the employment context, where it is extremely rare to find conduct that rises to 3 the level of extreme and outrageous. See Mintz, 183 Ariz. at 554, 905 P.2d at 563. Plaintiff 4 only alleges that KRMC terminated Plaintiff without hearing her side of the story, without 5 seeking the advice of counsel, and without Crome conducting an investigation into the 6 backboard incident (PSOF ¶ 57). Further, Plaintiff alleges that KRMC was motivated by 7 a desire to retaliate against Eakerns for raising discrimination complaints and by racial, sex 8 and national origin discrimination (Dkt. 90, 14:13-14). Even assuming that KRMC 9 wrongfully terminated Plaintiff under Title VII, KRMC s conduct involved behavior that a 10 reasonable finder of fact would find less outrageous than other tortfeasors. See Craig v. 11 M & O Agencies, Inc., 496 F.3d 1047, 1059 (9th Cir. 2007) (distinguishing plaintiff s case 12 where a supervisor repeatedly propositioned her, followed her into the bathroom, grabbed 13 her, and stuck his tongue in her mouth from other Arizona cases that did not find outrageous 14 conduct); Nelson, 181 Ariz. at 199, 888 P.2d at 1386 (finding that even if a defendant s 15 conduct is unjustifiable, it does not necessarily rise to the level of atrocious and beyond 16 all possible bounds of decency to establish an IIED claim). In light of the extremely high 17 burden of proof for demonstrating intentional infliction of emotional distress in Arizona, 18 no reasonable jury could find KRMC s action in terminating Plaintiff so outrageous in 19 character, and so extreme in degree, as to go beyond all possible bounds of decency, and to 20 be regarded as atrocious and utterly intolerable in a civilized community. See Bodett, 366 21 F.3d at 747; Johnson, 197 Ariz. at 160, 3 P.3d at 1080. 22 As Plaintiff cannot produce sufficient evidence on the first element, the Court need 23 not address the second and third elements of her IIED claim. See Nelson, 888 P.2d at 1386 24 (even if second and third elements of an IIED claim are present, trial court must make a 25 preliminary determination whether conduct may be considered extreme and outrageous). 26 Because Plaintiff cannot produce sufficient evidence of extreme and outrageous conduct, the 27 Court will grant in part summary judgment as to Plaintiff s intentional infliction of emotional 28 distress claim. - 25 - 1 CONCLUSION 2 Summary judgment is not proper as to Plaintiff s claims of race discrimination and 3 retaliation under Title VII and 42 U.S.C. § 1981. Plaintiff has raised a genuine issue of 4 material fact as to these claims because she has raised an inference that KRMC s legitimate, 5 nondiscriminatory reasons for terminating her were pretext. On the other hand, Plaintiff has 6 not raised a genuine dispute over a material fact for her IIED claim, and therefore, the Court 7 grants in part summary judgment in KRMC s favor. 8 Accordingly, 9 IT IS HEREBY ORDERED that Defendant KRMC s Motion for Summary 10 Judgment (Dkt. 77) is GRANTED IN PART as to Plaintiff Eakern s intentional infliction 11 of emotional distress claim and DENIED IN PART as to the rest of Plaintiff s claims. 12 IT IS FURTHER ORDERED setting a final pretrial conference before the 13 Honorable Stephen M. McNamee for June 1, 2009 at 3:00 p.m. in Courtroom 605 at 401 W. 14 Washington Street in Phoenix, Arizona. 15 IT IS FURTHER ORDERED that the parties shall keep the Court apprised of the 16 possibility of settlement and should settlement be reached, the parties shall file a Notice of 17 Settlement with the Clerk of the Court. 18 DATED this 18th day of March, 2009. 19 20 21 22 23 24 25 26 27 28 - 26 -

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